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JULY 06, 1989





Today's appellant presses a plethora of points seeking relief from a manslaughter conviction and twenty year sentence. Some of these are less than free from doubt. All have been considered with care and are discussed below. What is most troublesome of all is that nothing in the record before us makes clear, how and why appellant, a successful middle aged businessman, a pillar of his South Mississippi community, and active in his church, could kill his wife.

 In the end, we are satisfied that faithful application of the law to the facts and the course of proceedings before us requires affirmance.


 On the night of March 12, 1985, Mary Nell Jackson was assaulted and seriously injured while on the premises of Red Carpet Motors in Columbia, Mississippi. The following day she died of the injuries sustained in the assault. Her approximately fifty-year-old husband, James T. Jackson, the defendant below and appellant here, was with her that night and much of our understanding of events prior to the arrival of police and emergency medical personnel are the result of his voluntary statements.

 Red Carpet Motors is designed like the many automobile dealerships. A showroom extends across the entire front of the building. The business and sales offices are located behind the showroom. A central hallway runs from the showroom to the "shop" and "parts department" at the rear of the building. The shop doors are located on the same side of the building as the showroom doors.

 According to Jackson, he and his wife arrived at the dealership at approximately 8:00 p.m. He worked on his tax return. Mary Nell telephoned a friend, Merle Bass, who testified that this call ended at approximately 8:35 p.m. At 8:56 p.m., James Jackson telephoned the Columbia Police Department and reported a robbery. Jackson requested an ambulance for his injured wife.

 Within two minutes of Jackson's call, Sergeant Richard Stringer arrived at Red Carpet Motors. Jackson told him that an armed robbery had occurred and that his wife had been assaulted by someone while he, Jackson, was in another part of the building being forced at gunpoint to open the safe.

 According to Jackson's statement, he and Mary Nell heard a noise at the shop door. He went through the showroom to investigate. He opened the showroom door and looked outside toward the shop door. A masked gunman confronted Jackson and forced him to open the outside shop door. Jackson and the robber walked through the shop to the central hallway. Jackson unlocked the hall door and the two went up the hall to the showroom where the safe was located. While stalling in opening the safe, Jackson says he heard a noise in the shop that sounded like boxes falling. He responded but the robber hit him and told him to hurry up and open the safe.

 After opening the safe, Jackson says he gave the robber a blue bank bag containing the receipts of March 12. The robber then demanded Jackson's jewelry and money. He purportedly ripped the watch off of Jackson's wrist. The robber started up the hall. Jackson followed. The robber turned at the hallway door that opens into the shop and told Jackson not to follow him. Jackson stopped for a moment and then followed. He saw someone leaving by the shop door. Then he saw his wife lying on the floor face down, with blood running from beneath her. He immediately called 911.

 Jackson gave statements detailing his version of these events on more than one occasion. He first related the sequence to Sgt. Stringer on Tuesday, March 12. He then prepared a typed statement which he delivered to the Columbia Police Department on Monday, March 18. Jackson was interviewed by the investigating officers, and on April 12 he assisted in staging a reenactment of the robbery.

 These various statements contain inconsistencies in the description of the robber's clothing, the duration of the robbery, and the kind of "noise" Jackson heard while opening the safe. These discrepancies aroused the suspicion of investigating officers, who, after a two month investigation failed to unearth any evidence that anyone else was at Red Carpet Motors on the evening in question, decided ultimately that Jackson had fabricated the robbery story.

 This criminal prosecution formally commenced some four months later, on July 16, 1985, to be exact. On that date the Marion County Grand Jury returned an indictment charging James Jackson with the murder of his wife, Mary Nell. On his motion venue was changed to Rankin County, where he was ultimately found guilty of manslaughter. The Circuit Court, in response to the jury verdict, sentenced Jackson to serve a term of twenty years in the custody of the Mississippi Department of Corrections. Miss. Code Ann. 97-3-25 (1972).

 From that conviction and sentence Jackson now appeals, assigning ten (10) errors.


 Jackson first argues that the Circuit Court erred when it refused to enter judgment of acquittal notwithstanding the verdict of the jury. Jackson's specific point is that the evidence is legally insufficient to sustain a verdict of either murder or manslaughter. While conceding that the rather critical scrutiny his account of the events of the evening of March 12, 1985, received was "a legitimate

 inquiry," Jackson argues that the prosecution's case "was almost entirely negative in nature, and the prosecution relied heavily on persuading the jury not to believe appellant's account. . . ."

 Our scope of review of such points is as familiar as it is limited. All of the evidence must be considered in the light most favorable to the prosecution. McCurdy v. State, 511 So. 2d 148, 150 (Miss. 1987); Winston v. State, 479 So. 2d 1093, 1095 (Miss. 1985); May v. State, 460 So. 2d 778, 781 (Miss. 1984). The prosecution must be given the benefit of all favorable inferences that may reasonably be drawn from the credible evidence. Harris v. State, 532 So. 2d 602, 603 (Miss. 1988); Burge v. State, 472 So. 2d 392, 396 (Miss. 1985).

 If the facts and inferences so considered point in favor of the defendant with sufficient force that reasonable men could not have found beyond a reasonable doubt that the defendant was guilty, the assignment of error should be sustained. On the other hand, if there is substantial evidence in the record of such quality and weight that having in mind the beyond-a-reasonable-doubt burden-of-proof standard, reasonable fair minded men in the exercise of impartial judgment might reach different conclusions regarding the guilt of the defendant, we have no authority to disturb the jury's verdict.

 Weeks v. State, 493 So. 2d 1280, 1282 (Miss. 1986); Gray v. State, 487 So. 2d 1304, 1310 (Miss. 1986); Parker v. State, 484 So. 2d 1033, 1036 (Miss. 1986).

 Jackson invokes Weathersby v. State, 160 Miss. 207, 209, 147 So. 481, 482 (1933), the general rule of which is that, if the defendant and his witnesses are the only eyewitnesses to a homicide and if their version of what happened is both reasonable and consistent with innocence and if, further, there is no contradiction of that version in the physical facts, facts of common knowledge or other credible evidence, then the accused is entitled to a directed verdict of acquittal. Weathersby, of course, is nothing more than a particularized version of our general standards according to which courts must decide whether in a criminal prosecution the accused is entitled to a judgment of acquittal as a matter of law. Lanier v. State, 533 So. 2d 473, 490 (Miss. 1988); Shaw v. State, 521 So. 2d 1278, 1282 (Miss. 1987); Wetz v. State, 503 So. 2d 803, 809 (Miss. 1987); Harveston v. State, 493 So. 2d 365, 371 (Miss. 1986).

 Using these standards we examine the evidence of record in this case. Mary Nell Jackson was brutally attacked

 sometime between 8:35 and 8:56 p.m. When the Emergency Medical Technicians arrived at 9:01 the blood from her injuries had begun to clot on the concrete floor. Although blood was spattered on the walls of the dealership, none of the victim's blood was found on Jackson or his clothes. No weapon was ever identified as the murder weapon. A shattered Coke bottle was found near the victim's body, which could have been the murder weapon. Jackson's demeanor was described as unusually calm and unconcerned by some witnesses.

 Jackson's inconsistent descriptions of the assailant, and the noise during the "robbery" were presented to the jury. Quite significantly, a bank bag containing the receipts of March 12, which Jackson claimed had been stolen, was found in a file cabinet in the dealership. An employee who was also Jackson's brother-in-law, however, testified that the bank bag itself was not the same one which was in the safe prior to the robbery, although the receipts were the ones which had been in the safe. One witness, an employee who was passing by, testified that the shop door was closed at 8:45, another testified that she saw the door opening at 8:55. The evidence reflects no motive for murder.

 James Jackson did not claim to know how Mary Nell Jackson was assaulted. The prosecution argued that Jackson attacked his wife, then fabricated the story to cover his crime. The evidence, as presented to the jury is full of inconsistencies, time discrepancies, and improbable physical feats by the "robber" . This became apparent in the "reenactment" to be discussed below. That the bank bag with the "stolen" receipts of March 12 was found in the office may reasonably be said to suggest that Jackson was lying about the robbery.

 We regard the evidence as legally sufficient to establish beyond a reasonable doubt that Jackson killed his wife. Notwithstanding, we regard Jackson's argument of such force that we should reiterate a reflection from a case decided several years ago.

 Of course, this assignment of error turns not upon how we see the evidence, for our institutionally mandated and self-imposed scope of review is quite limited. That limitation is premised upon our candid recognition that the jury system is at best the least imperfect way we have of determining guilt or innocence. We cannot help but be aware that a rational, fair-minded juror could well have found [the defendant] not guilty. Nevertheless, were we to substitute our view for the jury's, one thing could be said with certainty: the

 chances of error in any findings we might make would be infinitely greater than is the case where those findings have been made by twelve citizens, peers of the defendant, who are on the trial scene and have smelled the smoke of the battle.

 Harveston v. State, 493 So. 2d 365, 372 (Miss. 1986).

 The assignment of error is denied.


 Jackson next argues that the Circuit Court erred when it denied his motion for a mistrial following Investigator Billy Simmons' presentation to the jury of an oral statement made by Jackson, the contents of which had not been disclosed to the defense in pre-trial discovery. The point occurred during Simmons' direct testimony. He related to the jury Jackson's "explanation" of how the bank bag may have gotten into the filing cabinet. The defense objected immediately, on grounds the prosecution had not informed the defense of its intent to use the statement.

 There can no longer be doubt that Rule 4.06 (a)(2), *fn1 Miss. Unif. Crim. R. Cir. Ct. Prac., extends to oral as well as written and recorded statements. Nixon v. State, 533 So. 2d 1078, 1089 (Miss. 1987); Estes v. State, 533 So. 2d 437, 440 (Miss. 1988); Smith v. State, 530 So. 2d 155, 158 (Miss. 1988); Moore v. State, 508 So. 2d 666, 668 (Miss. 1987); Franklin v. State, 460 So. 2d 104, 106 (Miss. 1984). The Circuit Court so held, and found as a fact that the statement had not been disclosed, though the defense had made repeated requests therefor. In this context, the Circuit Court sustained Jackson's objection and held the statement inadmissible. The jury was expressly admonished to disregard it. The Court even went so far as to poll each member of the jury and secure the pledge of each that the statement would be disregarded.

 The Circuit Court's handling of this matter was well within its authority. Our trial system proceeds on the assumption that jurors are possessed of sufficient intelligence and integrity that, once sworn, they may be counted upon to follow instructions given by the court. See, e.g., Shoemaker v. State, 502 So. 2d 1193, 1195 (Miss. 1987); Walker v. State, 473 So. 2d 435, 440 (Miss. 1985). In this context, we find no error in the Circuit Court's denial of Jackson's motion for a mistrial.


 Jackson argues that the Circuit Court committed error when it permitted Highway Patrol Investigator Simmons, over Jackson's objection, to describe for the jury a reenactment of Jackson's version of the events of the evening of March 12, 1985.

 Context is critical for understanding this assignment. Jackson - voluntarily, without question - had given several written statements describing the events of March 12 and had been interviewed extensively by Simmons. Upon studying Jackson's story, Simmons concluded that he could not quite visualize how everything was supposed to have happened. Jackson agreed to reenact the events, and this was done on April 2, 1985.

 Jackson wrote the reenactment script. Simmons testified he told Jackson to take whatever time he needed, to sit down over a weekend when he had plenty of time to think, and write out a step-by-step scenario of what happened. This Jackson did. Jackson played the role of the robber, wearing a ski mask and all, and more importantly, doing what he says the robber did and controlling the timing. Jackson's, son, Jimmy, portrayed his father. The reenactment was video-taped. The prosecution concluded that the reenactment raised serious questions about the credibility of Jackson's story and proposed to present the video tape to the jury in support of its case-in-chief. Upon Jackson's objection, the Circuit Court held the video tape not admissible. The Court's grounds for this ruling were that Jackson was presented in the role of the robber and that this might have the effect of prejudicing the jury against him in the sense that he appeared in the tape in the role of a criminal. Notwithstanding, the Court allowed Investigator Simmons to describe in great detail the reenactment, subject to scrupulous guidelines which prevented the jury from knowing who had played the role of Jackson and who had played the role of the robber.

 The prosecution painstakingly laid the predicate for Simmons' testimony. There can be no question but that the reenactment occurred according to Jackson's script and subject to his control of the alleged robber's actions and, as well, the timing. Simmons testified that after the reenactment Jackson expressly confirmed that the timing and events "would be very close." As such, the reenactment may fairly be categorized as an admission. It is the accused's enacted expression of just what happened.

 "An admission is an acknowledgment by the accused of certain facts which tend, together with other facts, to establish his guilt." 4 Wharton's Criminal Evidence 651 at

 214 (14th ed. 1987). See also State v. Johnson, 249 La. 950, 192 So. 2d 135, 142 (1966). Assuming the proper predicate has been laid, admissions of a party are admissible against that party.

 Reenactment is a common law enforcement investigative procedure. E.g., State v. Ortega, 77 N.M. 7, 419 P.2d 219, 223 (1966). Where the accused is asked to participate, of course, it must be preceded by proper warnings because of its inculpatory potential. Of course, the accused's participation must be free and voluntary. Commonwealth v. Hodgkins, 401 Mass. 871, 875-78, 520 N.E.2d 145, 148-49 (1988); Commonwealth v. Peters, 473 Pa. 22, 373 A.2d 1055, 1060-62 (1977).

 Actually, the videotape of the reenactment may well have been admissible had it not portrayed Jackson in the role of a criminal. Commonwealth v. Hodgkins, 401 Mass. 871, 875-78, 520 N.E.2d 145, 148-49 (1988); Morgan v. State, 518 So. 2d 186, 189-90 (Ala. Cr. App. 1987); Clark v. St. Thomas Hospital, 676 S.W.2d 347, 348-50 (Tenn. App. 1984). We are aware of Texas' voice of caution, e.q., Miller v. State, 741 S.W.2d 382, 388 (Tex. Cr. App. 1987), regarding the danger of unfair prejudice, but regard that minor variances in conditions and circumstances as going to weight and not admissibility. People v. Sexton, 192 Colo. 81, 555 P.2d 1151, 1154 (1976). At least one court appears to prefer verbal description of the reenactment from the witness stand, presumably because of the lessened visual impact on the jury and enhanced possibilities for cross-examination. Dowell v. State, 516 So. 2d 271, 274 (Fla. App. 1987).

 Because the reenactment was an admission and the predicate was laid, the Circuit Court correctly allowed Officer Billy Simmons to describe Jackson's reenactment for the jury's benefit. Rules 401, 403 and 801 (d)(2), Miss. R. Ev., see also Winters v. State, 473 So. 2d 452 (Miss. 1985); Neal v. State, 451 So. 2d 743 (Miss. 1984).

 Jackson argues that we should regard the reenactment as an experiment, not an admission. In truth, the reenactment partakes of both, an admission in the sense just described and an experiment in the sense that some of the actions Jackson attributed to the robber were difficult of performance. Our pre-Rules case law required a high degree of similarity between the conditions at the time of the event at issue and those when the experiment was conducted. Hines v. State, 339 So. 2d 56, 57 (Miss. 1976); Illinois Central Gulf Railroad Co. v. Ishee, 317 So. 2d 923, 926 (Miss. 1975). Simmons' testimony regarding Jackson's confirmation - itself an admission, Rule 801 (d)(2)(A) & (B), Miss. R. Ev. - of the timing, schedule, and

 events was a sufficient predicate for the Court's receipt into evidence of Simmons' verbal description of the reenactment, even if it be regarded an experiment. To be sure, a measure of discretion resides in the trial court regarding admission of experimental evidence, Hines v. State, 339 So. 2d 56, 57 (Miss. 1976), a notion necessarily importing at least two differing options neither of which if taken by the trial court will require reversal. Burkett v. Burkett, 537 So. 2d 443, 446 (Miss. 1989); Hooten v. State, 492 So. 2d 948, 950 (Miss. 1986) (Hawkins, J., dissenting). In today's context one viable option was overruling Jackson's objection.

 The assignment of error is denied.


 Jackson argues that the Circuit Court permitted investigators, J. B. Dickerson and Billy Simmons, to express from the witness stand their opinions that they believed Jackson was lying when he suggested that a robbery had occurred and that his wife had been killed by the robber's accomplice. So characterized, this lay opinion testimony constitutes error of reversible proportions, or so we are told.

 We need to be clear about exactly what was said. We need further consider separately the said-to-be offensive testimony of J. B. Dickerson and then that of Billy Simmons.


 Dickerson first. On direct examination, the prosecution sought to elicit from Dickerson that he was suspicious about Jackson's story. Initially, Dickerson testified that "there were some discrepancies" in Jackson's story, to which the defense objected as being unresponsive to the question. Before the Court could pass on the objection, the prosecutor offered to "clarify" the question.

 The prosecuting attorney then asked Dickerson if, when he talked to Jackson, he had assumed that a robbery had actually taken place, whereupon the follow colloquy took place:

 A. The night of the murder - the night of the alleged robbery, I did not believe it was an armed robbery.

 Q. All right, did you have questions about it then?

 A. I had questions, yes, sir.

 Q. After you spoke with Mr. Jackson on the 18th, would you tell the jury what problems you had with - what questions came to your mind with respect to the sequence of events, the account that Mr. Jackson gave?

 At this point, defense counsel objected on grounds that the question called for an inadmissible opinion. The Circuit Court ...

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